When friends become family: how a dependence between friends may pave the way for a future claim for Family Provision

1-June-2020 Estates By Jamal Bakalian

When we think of family provisions claims that are made against a deceased person’s estate, we often think of the sister who was left out of the will, or the estranged but now returned prodigal son…we rarely consider friends who are not blood-relations. However, the case of Rakovich v Marszalek [2020] NSWSC 589 is an important precedent where it was recently decided that a friend who was cared for by the deceased like family, was successfully granted a provision from the deceased’s estate.

Background

Turning back time for a moment, the deceased was Horst Marszalek. At the time of his death in February 2018, Horst was a longtime bachelor and left no surviving children. Horst also died without leaving a Will.  When someone dies without a will, the rules of intestacy apply. Under the rules of intestacy: Horst’s beneficiaries were his closest living relatives: two nieces and two nephews whom he had never met and knew only knew of him through phone calls exchanged at holidays and from stories told by their parents (the deceased’s siblings).

Whilst Horst did not leave any close family, he had a very close confidant: Mr George Rakovich.

George was a divorcee who had, from time to time, lived with Horst. George considered Horst to be his stepfather and had, for years relied upon Horst for everything from providing  him with a place to live to acting as his confidant and advisor during the time of George’s  divorce.

The relationship between Horst and George was far from one sided: it was characterised by the Court as being a relationship of “mutual dependence”. Horst was of ailing mental health and relied upon George for support when his resolve to live had waivered.

The Claim

After Horst passed away in February 2018, George had brought a claim under s50(1) of the Succession Act 2006 (NSW) (“the Act”) for an entitlement to Horst’s estate and claimed that he was ‘an eligible person’.

In response to George’s claim, the Court was required to determine two key issues:

  1. Whether George was an eligible person; and
  2. The extent to which Horst would/should have provided for George had a will been made.

George’s Eligibility

In order for George to provide that he was an eligible person, he had to satisfy the Court of his dependence upon Horst and the nature of his relationship with Horst.

The fact that George had lived with Horst and relied on him for housing, emotional care and financial support satisfied:

  • s 57(1)(e) of the Act – as George was, at times, “wholly or partly dependent upon” Horst and was “a member of the household” to which Horst belonged; and
  • s 57(1)(f) of the Act– George had lived in a “close personal relationship” with Horst at the time of Horst’s death.

There was no dispute as to whether George was an eligible person under s57(1) of the Act.

The Issue

The Court’s assistance was required to determine the amount that George should receive from Horst’s estate to provide for George’s “proper maintenance or advancement in life”. In doing so, the Court considered two things; firstly, what was “adequate by reference to (George’s) needs” and what was “proper in the circumstances of the case”.

The Court’s Determination

As in most Family Provision claims, there was no exact “scientific, or arithmetic” formula by which the Court determined the provision to be made for George. In determining the provision to be made for George, the Court had regard to:

  • The size and nature of the Horst’s estate;
  • The relationship between Horst and George;
  • The competing moral and financial claims of Horst’s nephews and nieces; and
  • The financial circumstances of Horst’s nephews and nieces.

Evidence filed by nephews and nieces raised questions about the nature of the relationship between Horst and their respective parents and subsequently, Horst’s relationship with each of them. Horst relationship with his family was not a close one.  At most, Horst spoke with his family at holidays and for milestone events.

By comparison, George considered Horst to be a sort of “stepfather” to him. The nature of this relationship and the bond between the two was corroborated by evidence from Horst’s doctors.

As such, whilst Horst had a moral duty to his nieces and nephews, it was argued during the case that he had a stronger moral duty to provide for George.

However, the Court also considered the evidence that was put forward which showed that Horst’s nieces and nephews were both of modest financial means.

The Court determined that George was entitled to 45% to Horst’s estate.

The Lesson

Just as you have a choice about who you befriend, you also have a choice about who will benefit from your estate once you pass.

Make a wise choice and call Streeterlaw on 02 8197 0105 and speak to one of our experienced Estate Solicitors to ensure that you have the best plan in place for your Estate ,guaranteeing that your will provides for the ones who need it the most, giving you peace

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Written by Jamal Bakalian

Jamal Bakalian

After studying a double degree in Law and International & Global Studies at Sydney University, Jamal completed her GDLP at the College of Law. She is currently undertaking her Masters of Law (majoring in Commercial Litigation). Jamal has been practicing Law for 5 years. With a passion for resolving disputes, Jamal is a valuable member of the Commercial Litigation team at Streeterlaw.

Call us on 02 8197 0105 to book an appointment with Jamal Bakalian!

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